BVA9502033
DOCKET NO. 93-05 218 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
John R. Pagano, Counsel
INTRODUCTION
The veteran had active military service from September 1970 to
May 1975.
This matter arises from various rating decisions rendered since
December 1991 by the Department of Veterans Affairs (VA)
Muskogee, Oklahoma, Regional Office (RO) which denied the veteran
entitlement to the benefit now sought on appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the VA erred in denying him service
connection for post-traumatic stress disorder. He asserts that
while serving in the Republic of Vietnam, he experienced a number
of stressful incidents that were sufficient in nature to give
rise to the disability now claimed. He further asserts that the
clinical evidence of record confirms the presence of post-
traumatic stress disorder. He argues that, in this respect, all
reasonable doubt must be resolved in his favor. Alternatively,
the veteran contends that he should be accorded further
psychiatric examination to reconcile the conflicting psychiatric
diagnoses of record, or that the opinion of an independent
medical examiner be elicited for that purpose.
DECISION OF THE BOARD
The Board of Veterans' Appeals (Board), in accordance with the
provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and
considered all of the evidence and material of record in the
veteran's claims file. Based upon its review of the relevant
evidence in this matter, and for the following reasons and bases,
it is the decision of the Board that the preponderance of the
evidence is against the claim for service connection for post-
traumatic stress disorder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition
of the veteran's appeal has been obtained by the RO, to the
extent possible. The veteran failed to respond to a request that
he furnish more detailed information regarding the specific in-
service incidents which he believed were stressful in nature.
2. Although the veteran served in a combat zone, he was not
directly involved in combat.
3. Post-traumatic stress disorder has not been reasonably
substantiated by the evidence of record, in large part due to the
absence of a verified stressor.
4. The question at hand is not so complex or controversial that
it requires an additional opinion by an independent medical
expert.
CONCLUSIONS OF LAW
1. Post-traumatic stress disorder was not incurred in, or
aggravated by, military service. 38 U.S.C.A. §§ 1110, 5107 (West
1991); 38 C.F.R. § 3.304(f) (1993).
2. An independent medical expert's opinion is not warranted.
38 U.S.C.A. § 7109(a) (West 1991); 38 C.F.R. § 20.901(d) (1993).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As a preliminary matter, the Board finds the veteran's claim to
be well grounded; that is, one which is plausible and capable of
substantiation. Moreover, VA has satisfied its obligation to
assist him in its development. See 38 U.S.C.A. § 5107(a) (West
1991). In this regard, the Board notes that the veteran was
requested to furnish specific information regarding the stressors
which he purports to have experienced during his service in the
Republic of Vietnam, but none was forthcoming. The duty to
assist is not always a one-way street; the veteran was given the
opportunity to furnish information that was essential in
obtaining additional putative evidence in this case, but did not
respond. As such, VA has done all that can be reasonably be
expected to obtain information pertinent to the veteran's claim.
See Wood v. Derwinski, 1 Vet.App. 190, 192-193 (1991).
I. Background
The veteran served in the Republic of Vietnam from June 1971 to
June 1972. During that time, he functioned as a communications
center specialist. He received various medical treatment during
that period, none of which was for complaints or findings
associated with a psychiatric disorder. During a physical
examination conducted in early 1975, the veteran complained of
nervous trouble, but the examiner found the veteran to be normal
psychiatrically.
The first post-service evidence of a psychiatric disorder is that
found in the November 1982 report of T. P. Scarano, a licensed
clinical psychologist. The veteran informed Dr. Scarano that he
had been assigned to a communications center while serving in the
Republic of Vietnam. The veteran indicated that his duties
included guarding the base camp's perimeter at night. The
veteran claimed that he observed numerous deaths because the base
camp constantly was rocketed and attacked. The veteran stated
that his duties included reconnaissance missions into suspected
enemy positions to monitor enemy troop and equipment movements.
He indicated that during these missions, he had many confirmed
kills, and that many of his Marine escorts were killed, as well.
He described one instance during which his base camp was overrun
and his team was captured for four days. The veteran indicated
that on the fourth day he was rescued by other Marines and sent
to a base camp in the rear for the remaining two months of his
tour of duty. Dr. Scarano observed that the veteran had a flat,
depressive affect, along with attitudes of denial and repression.
Based upon the history related by the veteran, as well as the
doctor's observations during the interview, a diagnosis of post-
traumatic stress disorder was made.
The veteran underwent a VA psychiatric examination in October
1991. During the examination, he again stated that he had done
reconnaissance work while in the Republic of Vietnam, and that
his missions included the assassination of various North
Vietnamese Army officers. He also reiterated that he had been
captured for a period of four days and that while in Vietnam he
had seen many dead and mutilated bodies. The veteran related to
the examiner in a guarded, distant, suspicious, and detached
manner. The veteran's mood was depressed, and his affect was
flattened and blunted. The remainder of the examination,
however, was within normal limits. The examiner diagnosed
adjustment disorder with depressed mood, and indicated that he
did not believe a diagnosis of post-traumatic stress disorder was
substantiated.
II. Analysis
Service connection may be granted for post-traumatic stress
disorder if there exists both a stressor in service and a
confirmation of that disability following separation from
service. Conversely, the absence of either element would be
fatal to such a grant. These criteria are defined in greater
detail in the American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders, 247-251 (3rd ed. rev.
1987) which states, in part, that the special feature of post-
traumatic stress disorder is the development of characteristic
symptoms following a psychologically distressing event that is
outside the range of usual human experience. The stressor
producing this symptom would be markedly distressing to almost
anyone, and is usually experienced with intense fear, terror and
helplessness. The characteristic symptoms involve reexperiencing
the traumatic events, avoidance of stimuli associated with the
event or numbing of general responsiveness, and increased
arousal.
The first question to be answered is whether the record, when
viewed as a whole, indicates that the veteran experienced a
requisite stressor during service. Id. The veteran's service
records indicate that he was awarded the National Defense Service
Medal, the Vietnam Service Medal with two Bronze Service Stars,
the Republic of Vietnam Campaign Medal, the Army Commendation
Medal, the Meritorious Unit Commendation, and the Good Conduct
Medal. None of the foregoing, or any of the veteran's service
medical or personnel records, indicates that the veteran was in
combat, or that he was cited for valor. Thus, there is no
confirmation that the veteran was engaged in combat with the
enemy. If there were, his statements regarding the stressors
which he purportedly experienced in service would be accepted as
conclusive as to their actual occurrence. See Zarycki v. Brown,
6 Vet.App. 91, 97 (1993). Absent this, however,the credibility
of the veteran's statements regarding the various stressors that
he experienced must be examined. The Board finds that these
statements are not credible for a number of reasons. First, an
attempt to verify the veteran's purported prisoner-of-war status
was futile. The Department of the Army had no record of the
veteran's alleged capture by the enemy and subsequent liberation.
This is of particular import, given that the veteran does not
claim to have escaped (in which case there might well be no
official record of such an incident), but instead claims to have
been rescued from captivity by friendly forces. Second,
personnel records indicate that the veteran served as a
communications center specialist during his entire tour of duty
in the Republic of Vietnam. There is no indication that he
served in any other capacity, nor is there any reference to
reconnaissance work. While the veteran may have served on guard
duty, as he stated, that tends to be among the duties and
experiences endemic to a combat zone, and although stressful,
does not constitute a stressor as contemplated by law. See
38 C.F.R. § 3.304(f); Zarycki, 6 Vet.App. at 99. Interestingly,
when the veteran was interviewed in 1982, he referred to
witnessing rocket and mortar attacks on his base camp which, he
stated, resulted in numerous deaths; however, no such references
were made during his recent VA examination. Nor did he respond
when asked by the RO to elaborate upon those experiences that he
considered to be stressful.
The absence of a verified stressor dictates the weight to be
given to the various medical statements of record. The diagnosis
rendered by Dr. Scarano was based upon a history related by the
veteran which is not otherwise supported by the record.
Conversely, a VA psychiatrist more recently concluded that the
veteran was not suffering from post-traumatic stress disorder,
but was instead, suffering from an adjustment disorder with
depressed mood. This conclusion was based upon both an
examination of the veteran and a review of the entire record. As
such, the Board finds the latter diagnosis to be the more
plausible of the two; without a verified stressor, a diagnosis of
post-traumatic stress disorder becomes tenuous, at best.
Moreover, the current diagnosis by the VA psychiatrist is
supported by evidence of the veteran's conviction of murder in
the early 1980's and his ongoing incarceration since that time.
Because the medical evidence is not in relative equipoise, the
provisions of 38 U.S.C.A. § 5107(b) (West 1991) are not for
application.
As a final matter, the Board observes that the question at issue
is one of relative simplicity. The single diagnosis of post-
traumatic stress disorder is not supported by the record, while
the diagnosis of adjustment disorder with depressive mood is in
keeping with the veteran's current circumstances. As such, the
Board does not believe that an additional medical opinion should
be sought prior to final appellate disposition.
ORDER
Service connection for post-traumatic stress disorder is denied.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.